Additional paternity rights for employee fathers take effect

Article date: 01.04.11

Employers of fathers of children whose expected week of birth begins on or after 3 April must allow them additional paternity leave under new paternity regulations now in force.

Under the new rules, a new father can take up to 26 weeks of ‘additional paternity leave", provided that he and the mother of the child meet certain criteria. This 26 week-period is in addition to the two weeks’ paid paternity leave fathers were already entitled to take within eight weeks of the birth under previous law.

To qualify for additional paternity leave, a father must have had 26 weeks or more continuous employment by the end of the 15th week before the start of the week when the baby is due. The new leave must be taken before the baby’s first birthday, and must be for a continuous period. It can only be taken if the mother is working (including if she is self-employed) and she returns to her work before the expiry of her maternity leave. The leave must be to take care of the child.

During their paternity leave fathers can claim any unpaid statutory maternity pay which the mother would have received if she had not returned to work – £128.73 from 3 April 2011 or 90 per cent of earnings, whichever is less – but only for any remaining portion of the period during which the mother would have been entitled to statutory maternity pay.

To qualify for additional statutory paternity pay, a father must earn more than the lower earnings limit for National Insurance purposes, and the mother must have returned to work with at least two weeks of the 39-week maternity-pay period left to run.

The new rights are available to same-sex partners if they live with the mother in an enduring family relationship - so that in certain circumstances a woman may be able to claim paternity leave.

The new rules are sometimes described as a sharing of the mother’s 52 weeks’ maternity leave with the father. This is inaccurate. A mother could start maternity leave 11 weeks before the expected week of birth, and go back to work 20 weeks after the birth – a total of 31 weeks. The father would then be entitled to a further 26 weeks’ paternity leave, provided he takes it before the baby’s first birthday. He would also be entitled to the two weeks he was entitled to before. The overall total taken by them both could therefore be 59 weeks. This would be in addition to any holiday they take.

Employers are entitled to ask for evidence of leave taken by mothers employed by different employers, to avoid abuse.

Recommendation
Employers should prepare for the new rules by reviewing their processes, systems and handbooks and training relevant staff. If in doubt, take advice.

* This is not legal advice; it is intended to provide information of general interest about current legal issues.